Thursday, October 20, 2016

Among the most noteworthy of the hacked e-mails from John Podesta’s accounts is an exchange in which Podesta consults Clinton consigliere Cheryl Mills about the private e-mail exchanges between President Obama and then-Secretary of State Hillary Clinton.

As readers may recall, I have long maintained (see here and here) that the principal reason why Mrs. Clinton was not prosecuted, despite a mountain of evidence that she committed felony mishandling of classified information, is the fact that Obama engaged in the same kind of misconduct. The president’s use of a private, non-secure channel to discuss sensitive matters with high level officials may not have been systematic, as Mrs. Clinton’s was. (Obama’s disturbing use of an alias, however, suggests that Clinton was not the only one he was privately e-mailing.) Nevertheless, the fact that the president was e-mailing Clinton means he not only participated in her misconduct but also that the Obama-Clinton e-mails would have been admissible evidence in any criminal trial of Clinton.

For the parties to prove such culpable conduct on the president’s part in a high-profile criminal trial would have been profoundly embarrassing to him, to say the least. Therefore, it was never going to happen. As I’ve noted before, after exclaiming, “How is that not classified?” upon being shown an Obama-Clinton e-mail by the FBI, Hillary’s confidant Huma Abedin asked agents if she could have a copy of the exchange. She obviously realized that if Obama had been communicating on Clinton’s non-secure server system, no one else who had done so was going to be prosecuted for it.

We now know that Podesta was very concerned about the Obama-Clinton e-mails and turned to Mills for advice. His succinct e-mail to Mills is dated March 4, 2015 (at 8:41 p.m.), and he entitled it “Special Category.” He stated:

Think we should hold emails to and from potus? That’s the heart of his exec privilege. We could get them to ask for that. They may not care, but I [sic] seems like they will.

Plainly, Podesta was suggesting to Mills that the Obama-Clinton e-mails were in a “special category” — i.e., distinct from the tens of thousands of other Clinton e-mails — because they involved the president. Only the president has power to invoke executive privilege, and Podesta believed such invocation would legitimately cover a communication between Obama and his secretary of state, since such consultations are “the heart of” the privilege recognized by the Supreme Court in United States v. Nixon. (I think he was wrong about that, but that’s a matter for another day.)

If Mills ever responded to Podesta’s question, we do not have an e-mail to that effect. It is unlikely Mills would have ignored Podesta, particularly on a matter of such significance. Thus, I suspect further discussion was had face-to-face, by phone, or through intermediaries.

The timing of the March 4 Podesta-Mills e-mail is highly significant. The date places it about three weeks after Podesta left his White House job as the president’s top advisor in order to head up the Clinton presidential campaign; the transitioning Podesta was still involved in Oval Office doings, and the Clinton campaign was up and running though not yet publicly launched. More significantly, the e-mail occurred when both the administration and the campaign were in crisis mode: It was immediately after the New York Times publicly exposed Clinton’s private e-mail system, and the House Benghazi committee had just issued a subpoena, demanding that Clinton preserve and provide any private e-mails within the scope of the committee’s investigation.

With that as background, we should consider three salient matters.

1. OBAMA’S CONCEALMENT OF HIS E-MAILS WITH CLINTON

In the days immediately after the Times’ revelation of Mrs. Clinton’s systematic use of private e-mail to conduct government business, President Obama sat for interviews in which he claimed that he’d learned of Clinton’s personal e-mail use through “news reports” like everyone else. He flatly denied that he had any personal knowledge about the matter. Clearly, the president was lying to the American people: He knew he personally had engaged in several e-mails with Clinton. By extension, Obama was also lying to the Congress. As he well knew, congressional committees had been investigating matters (most prominently, Benghazi) in which communications between Obama and Clinton were of immense importance. Now, we know Obama not only had intimate personal awareness of what Clinton was doing; his top White House advisor, Podesta, was both aware of and concerned about the Obama-Clinton e-mails.